1977 PLP 457 (SCMR)

The articles seized from his person were stained with human blood for which there is no explanation except a bare denial. He led to the recovery a of blond‑stained sword from, a place which was in his exclusive knowledge and answered to the description of the weapon given in the extra judicial confession. Ht also produced a bundle containing the articles belonging to Allah Ditta and his wife Mst. Irshad Begum. They were identified by Mst. Irshad Begum. In particular the ear‑rings (P. 1/1‑2) and locket (P. 2) were proved to have been given to bar by her husband's sister Mst. Hakan who was examined as a witness tar the case. Ali Muhammad the goldsmith who had made then at the behest of Mst. Hakan was also examined to establish this fact. The recovery of the trunk containing these articles further gave support to the confession that Allah Ditta was returning to village. Nathu Swayya as he was not willing to stay at Lahore any more. The appellant has not explained as to how he happened to be in possession of these articles which belonged to the deceased and Mst. Irshad Begum if he had not accompanied him. Since they were possessed by them and recovered from the trunk, their ownership cannot be in doubt. The appellant has not asserted that these articles belonged to him nor was a case made out that they were foisted on him. There is, therefore, no other conclusion but that he bad removed them from the trunk belonging to the deceased. It was urged that the parcels were tampered with and in this context reliance was placed on the evidence of Muhammad Siddiq (D. W. 1). Sain Khan (P. W. 23 received three sealed parcels from the Muharrir A. S.1. on 13‑12‑1971 for being taken to the office of the Chemical Examiner, Lahore but as he got the docket late in tile day, he re‑deposited these articles in the Malkhana and on the following day he collected the parcels and took them to Lahore where he delivered them to the Chemical Examiner. However, Muhammad Siddiq (D. W. 1) was examined to show that in the Daily Diary of Police Station Qila Didar Singh no entry in regard to the redeposit of the articles was made pan 13th, 14th, or 15th December, 1971 after they were handed over to Sain Khan on 13th to be taken to the Chemical Examiner. As to whether the article; remained with Sain Khan after the 13th December till they were finally deposited in tae office of the Chemical Examiner or were re‑deposited by him is not a circumstance which would establish any tampering with the articles, for, it was a bare allegation without anything further to infer as to in what manner the articles were tampered with. In the context of the un-equivocal evidence as to the seizure of the incriminating articles slid the production of the bleed‑stained crime weapons, the sug gestion of manipulator leas hardly any value. Even otherwise, there is noth ing in the evidence of Sain Khan to show test he was interested getting the appellant implicated anal for that reason had surreptitiously retained the articles. It is a case where possibly from the lapse of memory Sam Khan may have stated that he had re-deposited them in the Malkhana and, therefore, in my view nothing turns on it. The motive is furnished by the testimony of Mist. Irshad Begum who was frank in stating that the deceased had seen her with the appellant in an objectionable posture and for that reason had entertained suspicion about her fidelity. There is also evidence to show that 8 or 10 days before the occurrence she was taken away by Murad, her father, whys has been discreet in not stating the reason as to why he took her to his village. But that is obvious from the fact that he had brought her bank to the village. The Courts below have accepted notice as the reason which prompted the appellant to kill the deceased which the appellant bas also admitted in his confession. In fact he wanted to remove tie deceased from his way and it was, therefore, that he went alongwith him on the pretext that he wanted to visit his own village. I have no hesitation in accepting this piece of evidence. It was contended that a dead body was found rear his village and to save his own skin Tufail Muhammad fabricated the extra‑judicial confession. This contention appears to be absurd on the face of it, for, he was not in any way connected with the murder and lee could leave hats no intuition to fasten the guilt en the appellant, Again it was urged that the appellant bad resiled from the extra judicial confession and, therefore, being retracted it should riot be acted upon. The appellant had retracted to avoid the consequences of the accusation and not because it was involuntary or false. In Joygun Bibi v. The State (PLD 1960SC 313) it was held that such retraction is of no value. The pertinent observations are as under :‑‑. "We are unable to support the proposition of law laid down by the learned Judges, in this regard. The retraction of confession is a circumstance a which has no bearing whatsoever upon the question whether is the first instance it was voluntarily made, and on the further question whether it is true. The fact that the maker of the confession later does not adhere to it cannot by itself have any effect upon the findings reached as to whether the confession was voluntary, and if so, whether it was true, for to withdraw from a self‑accusing, statement in direct fat; of the consequences of the accusation, is explicable fully by the proximity of those consequences, and need have no connection whatsoever with either its voluntary nature, or the truth of the facts stated. The confession is duly corroborated by the unimpeachable recoveries and it does not lose its evidentiary value merely because if was retracted. The learned counsel referred to other inconsequential omissions, but in the bread perspective of the case they are of no value. Concluding, therefore, each piece of evidence is free from doubt and cumulatively leads to the only conclusion that it was the appellant who had killed the deceased. Accordingly, I would uphold the conviction and sentence and dismiss the appeal. ANWARUL HAQ, J.‑I agree with the order proposed to be made in this case by my learned brother Mohammad Haleem. J that the appeal be dismissed. However. I wish to add a few remarks on some of the points raised before us by Ch. Fazal‑i‑Haq, Learned counsel for the appellant, ors the question of the admissibility sad evidentiary value of the retracted extra judicial confession as well as of the incriminating recoveries said to have been made at the instance of the appellant. I consider that the Courts below were right in accepting the testimony of Ch. Tufail Mohammad (P. W. 10) as well as of Altaf Ali (P. W. 11 ) as to the voluntary nature of the extra judicial confession made before them who were not known previously to the appellant, and have not been shown to have any motive whatsoever to fabricate a story against him, even thcu4h the dead body of the deceased Allah Ditta was found to be lying in the area of the village of which Ch. Tufail Muhammad is ore of the Lamb. It may have been his duty to report the crime under section 45, Cr. P. C., but obviously there was no question of his being implicated in the same, if he had not come forward with the a assertion that the appellant had confessed before him. I am also in respectful agreement with my learned brother that Ch. Tufail Muhammad cannot be dubbed as a stock police witness simply for the reason that he had previously appeared in another murder case in similar circumstances three: or four years ago. It was submitted by Ch. Fazal‑i‑Haq that even if the confession is believed to have been made as alleged by the prosecution, it was inadmis sible under section 24 of the Evidence Act, as it was made before a person in authority, namely, a Lambarder. The learned counsel referred us to two judgments of the Lahore High Court reported as Muhammad Alam v. The State (P L D 1909 Lah. 71) and Nazir v. State. (P L D 1960 Lah. 189) In the two cases cited by the learned counsel, it has indeed been held that Lambardars are important persons in the village and mast certainly be regarded as being persons in authority. I see no reason to differ from this view, but as observed by tile Federal Court is Rahim Bakhsh v. Crown (P L D 1952 F C 1) "before section 24 is pressed into service to throw out a confession, tile Court has to find several other facts in connection with that confession, the most important of which is that the person In authority shoed have held out to the confessor some threat, promise or inducement having reference to the char3e against him. "Now, in the present case, there is no material at all on the record to come to the conclusion that the Lambardar had in any manner induced the appellant to make the confession; on he contrary there is the assertion that the appellant disclosed to the Lambardar that all through the night, when he slept in or near tile village mosdua, his conscience had been troubling hint as he had murdered his own cousin for the sake of a woman, and therefore, he wanted the unburden his ni'3d by making the confession. It appears to me, therefore, that this is not at all a case where the confession is in any manner rendered inadmissible under section 24 of the Evidence Act, even though it had been made before the village Lambardar. The learned counsel for the appellant next contended that the confession was also vitiated for the reason that it was not expressed in the words of the appellant himself, and in this behalf he again relied upon the case of Nazir just mentioned. There does not appear to be any merit in this submission, as the story narrates by Lambardar Tufail Mohammad as well as by has companion Altaf Ali is in identical terms, and bath of then have purported to reproduce what was stated before them by the appellant. The circumstances in the precedent case were altogether different, as it was found by the Court in that case that the witness had given divergent versions before the committing Magistrate and at the trial as to the nature of the extra judicial confession made before him by the accused person. Mr. Fazal‑i‑Haq also contended that as the confession had been retracted, therefore, it had lost its evidentiary value. This proposition does not appear to be supported by any authority. On the contrary, the view consistently expressed by tie superior Courts in this country is that the retraction of a confession, whether judicial or extra judicial, is a circumstance which has no bearing whatsoever upon the question whether in the first instance it was voluntarily made, and on the further question whether it is true. It has in fact been observed that an extra‑judicial confession can be made the sole basis of a conviction, although as matter of prudence the Court must look for satisfactory corroboration. One may in this behalf refer to Abdul Latif v. Crown (P L D 1952 F C 113), Joygun Bibi v. State (P L D 1960 S C 313), State v. Mirhurn (P L D 1964 S c 813) and Hakim Ali v. The State (1971 S C M R. 413). The confession made by the appellant stands satisfactorily corroborated in this case by the discovery, at the appellant's instance, of the dead body of Allah Ditta, the blood‑stated weapon of offence, the blood‑stained garments worn by the appellant himself, as well as certain articles belonging to the deceased and his wife Met. Irshad Begum (P. W. 7). Tile motive also stands established by tire evidence of Mst. Irshad Begum, with whom the appellant bad established an illicit liaison while sae and her deceased husband were residing with him in the same room at Lahore. The statement of this woman finds indirect support from the testimony of her father Murad (P. W. 6), who admitted that he bad brought her away from Lahore a few days before the occurrence. Finally, there is also the evidence of Nisar Ahmad Bajwa (P. W. 1), Superintendent of the University Gardens, who had noticed the absence of the appellant as well as the deceased from their, duty from the 10th of December, 1971 onwards. These corroborative circumstances leave no doubt as to the guilt of the appellant. He has, therefore, been rightly convicted and sentenced. QAISAR KHAN, J.‑After going through the judgment proposed by my learned brother Muhammad Haleem, J. to be delivered in this case, it is with respect that I have to state that I do not find myself in agreement with it aria I shall therefore proceed to record my own judgment. Tie facts of the case have been given by my to learned brother in detail inn his proposed judgment and need not be reiterated. I shall straightaway proceed with the discussion of the evidence. The prosecution evidence consists of the following pieces :‑-- (1) The retracted extra‑judicial confession of the accused deposed to by Tufail Muhammad P. W. 10 and Altaf Ali P. W. 11. (2) Recoveries of some articles from the accused and some at bit instance deposed to by Ghulam Muhammad P. W. 5 and Ishtiaq Muhammad S. H. O. P. W. 13. (3) Motive for the offence deposed to by Mst. Irshad Begum P. W. 7. (4) Absence of the accused from his duty on the 10th i. e. the day follow ing the day of occurrence deposed to by Nisar Ahmad Bajwa P. W.

1. The most important piece of evidence in the case is the extra judicial confession of the accused and I proceed to discuss it first of all, for if the statements of the two P. Ws., namely, Tufail Muhammad and Altaf Ali are disbelieved then there is nothing loft in this case. In this respect both the Courts below have held that they were disinterested persons and there was therefore no reason for them to falsely implicate the accused and under the circumstances they could be relied upon. In my opinion the mere disinterestedness of a witness does not prove that he has come forward with a true statement. The statement itself has to be scrutinised thoroughly and it has to be seen as to whether in the circumstances of the case the statement is reason able, probable and plausible and could be relied upon, If the principle that a disinterested witness is always to be relied upon even if his statement is unreasonable, improbable and not plausible, then it would lead to very dangerous consequences. In the instant case the accused belongs to quite a different village from that of the two P. Ws. and the two P. Ws. have themselves stated that neither did the accused know them nor did they know the accused. In the circumstances how could the accused know what type of persons the two P. Ws. here and for what consideration and on what account were they deposing against him. In such a case the statements of the P. Ws. are to be scrutinised and tested for finding out as to whether these were reasonable, probable and plausible and could be relied upon irrespective of the fact that they were disinterested. After carefully going through the statements of the P. Ws. I have come to the conclusion that they have not been telling the truth and that the version given by them was a story made up after the dead body had been found near the village and the police had carried out investigation before the registration of any case. My reasons for coming to the aforesaid conclusions are as follows : It is in the statement of Tufail P. W. 10 that his Dera was to the east of the village Abadi while the place where the accused slept for the night wee to the west of the village Abadi. It is also in his statement that neither did he know the accused nor did the accused know him. It is therefore not understood as to how did the accused leave the whole village and go to the Dera of the P. W. situated outside the village at a distance of a furlong from it especially when there was another Lambardar in the village as well according to the statement of this P. W. It also does not stand to reason that the accused after murdering the deceased could have remained and slept near the place where he had committed the murder. The normal and natural instinct of any sane man after committing murder would be to run far away from the place where the murder is committed. It is no body's case that all at once after committing tie murder the accused felt the pinch o1 conscience for in that case he would have straightaway gone to the village soon after the occurrence and informed some body before Khuftan time. The accused could easily run away to his village after committing the murder and the question of his sleeping to a mosque close to the spot after the murder could not at all arise. If the accused had made the confession to the two P. Ws. round about 7 or 8 a. m. under the pinch of his conscience then if does not stand to reason that he could have gone back over it soon after. According to the prosecution evidence the police: arrived at the spot soon after round about 11 a. m. or 12 noon and if the accused had confessed and wanted to confess he could easily have been produced before a Magistrate the same day for getting his confession recorded. If the accused had actually appeared before Tufail P. W. and confessed to him then there is no reason why Tufail slid not take the, accused along with him to the police station to be banded over to the police. There are serious discrepancies and contradictions in the statement of Tufail the star witness. Both Tufail and Altaf P. Ws. Gave stated at the trial that after the confession they ‑took the accused to the spot from where Tufail went for report leaving the accused there under the charge of Altaf P. W. In his report however Tufail P. W. has stated that tie went to the spot with the Chaukidar leaving the accused and Altaf in his Dera. At the trial Tufail stated that he slept for the night in his Dera rod did not go to the mosque for morning prayers but offered it in his Dera. Before the committing Magistrate however he stated that he bed offered his prayers with Altaf in the mosque before he came to the Dera. On the other band Altaf has stated that be and Tufail offered their morning prayers in the mosque and then went to the Dera of Tufail. Tufail has stated that he hart sent his servant Qadir to the Takia to fetch firs for preparing Huqqa for stroking while Altaf on the other hand has stated that it was he who prepared the fire which Tufail put on the Chilam and that no servant was present at that time. The non‑recording of the report in the police station is a very important factor which creates a great doubt in the genuineness of the case. Kot Ladha is situated on the metalled road and is distant ten miles from the police station. Tufail according to him went to the police station in a bas reaching there at 9‑50 a. m. but strangely enough the report was not recorded in the police station. The S. H. O conveniently makes himself present at a distance of a furlong from the police station and records the report there. If the S. H. O. could send for Munir A. S. I. and two constables from the police station to accompany him in the same bus to the spot he could easily go to the police station to record the first information report in the register so as to exclude the creation of any doubt about the time of the recording of the report. The detailed nature in which the retort has been recorded clearly suggests that it seas not made by Tufail in the manner deposed to by him but that it was recorded after investigation had been carried out and after all the details bad bran ascertained. In this connection the following passage front the statement of Tufail P. W. is very much material : "I did not know the accused earlier. I also did not know his parentage and residence. I do not know these details even now, nor had I asked him about it, her did he tell me about it himself. I do not know what is "Campus". I do not remember if I had stated before the police that the accused wag employed at University Campus or University Gardens." In view of the above how on earth was it possible for Tufail P. W. to have made a report of the type of Exh. P. A. The next important factor is the arrival of S. H. O. at the spot and the carrying out the preliminary investigation by him. The report according to the prosecution evidence was recorded by the S. H. O. at 9‑50 a. m. in the bus stand and according to the S. H. O. he boarded a bus from there for the spot there and then. He must therefore have reached the spot at the latest by 11 a. m. the distance to be covered being only ten miles on a metalled road. It is also in the statement of Altaf P. W. that the S. H. O. arrived at the spot at I1 a, m. This is however belied by certain circumstances, and the other evidence on file. According to the S. H. O. the first thing that he did was to prepare the injury sheet and inquest report of the deceased. Now if the S. H. O. had prepared the injury sheet and inquest report at 11 a. m. then the dead body would have been sent to the hospital soon after and in that case the post‑mortem examination would have been done the same day Gujranwala being 19 miles away connected by a Pucca road. The pest‑mortem examination vas however done the neat day at 1‑15 p. m. It is in the statement of the S. H. O. that A. S. I. Munir and two P. Ws. accom panied him to the spot in the same bus and it is in the statement of Sain Khan F. C. P. W. 2 that he accompanied Munir A. S. I. to the spot. This is correct as well for it was Sain Khan F. C. who accompanied the dead body from the spat to the mortuary. The statement of Sain Khan F. C. However shows that information about the murder reached the police station on the 10th in the evening and that he and Allah Dad F. C. accompanied Munir A. S. I. in a bus to the spot reaching there at about sunset time, and that the S. H. O. came there an hour later. It is also in his statement that he reached the mortuary late in the night and that it was why the post-mortem was performed the next day. This statement of the F. C. is corrobo rated by the statement of Murad P. W. 6 as well. According to Murad on learning about the murder at Peshin time in his village he started for the shot reaching there at Deegarwela. According to him Sain Khan F. C. was present there and that the police arrived immediately thereafter, and conducted investigation after sunset. According to this witness Murad P. W. 6 he remained with the police party throughout but the police did nothing that day except to prepare the injury sheet and inquest report of the deceased and the site plan. The statements of these two P. Ws. Sain Khan F. C. and Murad knock the bottom out of the prosecution case. These would show that no report was recorded at 9‑50 a. m., the police did not go to the spot at 11 a. m. and that no recoveries were made on that day as alleged. In view of the above it appears that the dead body was found lying near the village and Tufail Lambardar informed the police who did riot record any report but carried out investigation the whole day arrested the accused on suspicion and then prepared the report and the record If the police had been informed in the morning which in fact was done then the arrest of the accused from Lahore to be brought to the spot till sunset could not be said to be impossible. Taking all these facts and circumstances into consideration I am of the opinion that the statements of the P. Ws. Tufail and Altaf could not be relied upon and are to be kept out of consideration. So far as the recoveries are concerned the evidence regarding these consists of the statement of Ghulam Muhammad P. W. 5 and S. H. O. P. W.

13. The statement of Ghulam Muhammad shows that the investigation regarding the recoveries was completed by 3 p. m. The statement of the S. H. O. also shows that he carried out the investigation including the recoveries during the day time. As held above the police did not reach the spot till about sunset and under the circumstances no value could be attached to the statement of the two P. Ws. regarding the recoveries. The occurrence took place during the 1971 War with India and it is common knowledge that most of the people had taken out their families from Lahore during those days. The deceased could not therefore keep his wife at Lahore during the days of occurrence. It is in the statement of Murad P. W. that due to war he went to Lahore and brought his daughter. The question of the deceased sending his wife from Lahore on account of her illicit relations with the accused as given in the alleged confession therefore did not arise. Besides Mst. Irshad Begum P. W. 7 while leaving for her home with her father could not have left behind her clothes and ornaments which she must have taken along with her and the question of the deceased carrying a trunk containing clothes and ornaments of Mst. Irshad also did not arise. These clothes and ornaments were not so much that these could not be carried away by Mst. Irshad and her father with themselves. The deceased was a poor man and as a matter of fact these could have been the only clothes and ornaments which Mst. Irshad could have had and the question of her leaving them at Lahore, could not arise. Furthermore these articles were never identified by any body in any proper identification parade held before any Magistrate. The mere claiming of these articles by Mst. Irshad before the police could not be of any use. These should have been kept with other similar articles and then got Identified before a Magistrate. There is nothing in the statement of Mst. Irshad to show that these clothes or ornaments had any special marks. Similarly the statement of Ali Muhammad P. W. 8 and Mst. Mehran Bibi P. W. 9 regarding the identification of the ear‑ring and locket too have no value whatsoever. Now coming to the motive for the offence the whole of the evidence consist of the statement of Mst. Irshad. Reading her statement as a whole it is abundantly clear that no reliance could be placed on it. The confession of the accused mentioned in the F. I. R. on which the prosecution relies shows that it was in Lahore that Mst. Irshad developed illicit relations with the accused but Mst. Irshad had stated at the trial that she developed illicit relations with the accused soon after her marriage when she lived at Longawal the village of her husband. It is in her statement that her husband left his village on the taunting of his brother 1Rashir but this Bashir was not examined by the prosecution to prove the illicit relations of the accused with Mst. Irshad. Murad P. W. is the father of Mst. Irshad and if she and her husband had left their village on the taunting regarding her illicit relationship with the accused then Murad must have been in the know of it. Murad however has stated nothing as to the illicit relationship of the accused with Mit. Irshad. Furthermore if the deceased and Mst. Irsh3d had left their village on account of the taunting of the people regarding her illicit relationship with the accused then the deceased could never have taken his wife to Lahore to live with the accused in the same Kotha. Besides if Mst. Irshad had illicit relations with the accused since the inception of her marriage with the deceased she could never have married Kala soon after the murder of her husband and would have certainly waited for the soused till the decision of his case. The solitary contradictory statement of Mst. Irshad therefore does not prove any motive for the accused to kill the deceased. So far as the absence of the accused from duty on the 10th is concerned there is no evidence worth the name on the file to prove it. The statement of Nisar P. W. 1 is not supported by any record produced by him. It is highly improbable that the Superintendent could have been marking the attendance of Malis in such a big institution daily himself. At any rate if the accused had been found absent on the 10th then some action would have been taken against him before the 15th. The show‑cause notice issued on the 15th clearly appears to have been issued after the police contacted the Superintendent after the arrest of the accused. It has not at all been explained as to how and where was the said notice served on the accused and as to why the proposed action was not taken against him when it had to be taken after two days as given in the notice. The upshot of the above discussion is that the prosecution has failed to bring home the charge to the accused beyond a reasonable doubt and giving the accused the benefit of doubt I would accept his appeal, set aside the conviction and sentence and acquit him. In accordance with the view of the majority, the appeal is dismissed. Appeal dismissed.